Top stories 2018 | No. 8: NH’s Right to Know Law tested

Wednesday

Dec 26, 2018 at 6:53 PMDec 26, 2018 at 6:53 PM

Elizabeth Dinan

Several of the top stories this year involved Right to Know cases, including a court fight for a list of named police officers, information about a fired police officer's arbitration, the multi-jurisdictional Coakley Landfill Group and a double-fatal boat crash.

David Saad, president of Right to Know New Hampshire, said his group has authored two bills pertaining to the Right to Know law for the pending legislative session. One seeks to require public bodies to "furnish reasons, in writing, for the delay or denial of records."

"When records are denied, it further requires the specific exemption relied on for the denial," according to RTK NH. "Currently, many public bodies error on the side of denying records because they don’t have to justify their denial to the citizen. This bill requires them to justify, in writing, why they are denying records."

The second seeks to clarify that when a citizen asks to inspect a record at a public body’s place of business, there will be no charge. This proposed legislation aims to make clear the law includes not charging a citizen when a public entity has to make a copy because it had to redact an original record.

Saad also reported that state Sen. Bob Giuda is again sponsoring a bill to establish an ombudsman to review Right to Know complaints, "with the goal of reducing costs for citizens, court system and public bodies and agencies."

Statewide fight for named-cops list

In a coordinated, statewide effort, Seacoast Media Group joined five other news outlets and the state chapter of the American Civil Liberties Union to file suit against the Department of Justice for release of a list naming New Hampshire police officers who may have credibility problems if called to testify in court.

When the state released a redacted copy in June, there were 171 officers' names on it. A redacted copy released in November had grown to 252 names. The list is formerly known as the Laurie List and is now called the Exculpatory Evidence Schedule (EES).

The officers’ names originate from police chiefs and reasons for being on the list can include lying, falsification of records or evidence, excessive use of force and criminal conduct. The list is kept confidential by county attorneys and the state and names are only disclosed, under seal, to defendants with cases involving the named officers.

Joining SMG as plaintiffs are the New Hampshire Center for Public Interest Journalism, the Telegraph of Nashua, Union Leader Corporation, the Concord Monitor’s parent company and Keene Publishing Corporation. The state’s ACLU chapter prepared and filed the suit through its legal counsel Gilles Bissonnette.

The state filed an Oct. 17 motion to dismiss the media groups’ lawsuit, arguing the identities of the named officers have remained confidential for 15 years, at the direction of the attorney general, “and in step with the Legislature’s stated intent that police officer personnel records not be disclosed to anyone other than a constitutionally-pertinent criminal defendant.”

The lawsuit asks a judge to rule the list is a public record and that the state reimburse the media groups for attorneys’ fees and costs for taking the case to court.

"The public has a right to know whether officers serving them have engaged in conduct that impacts their credibility or truthfulness," Bissonnette has said. "As the New Hampshire Supreme Court has repeatedly explained, the public interest in disclosure is great when it will expose potential government misconduct.”

Fight for fired cop's ruling

The Portsmouth Herald in October filed suit against the city of Portsmouth seeking an arbitrator's decision about fired officer Aaron Goodwin. In response, the city agreed the arbitrator's ruling should be public, but asked for a judge to make that ruling, because Goodwin's union objects to release of the report.

The three sides of the debate presented arguments during a Dec. 13 hearing in the Rockingham County Superior Court. Judge Amy Messer allowed for the filing of follow-up briefs and said she will issue a decision at a later date.

The court hearing was held in response to the Herald’s suit, filed after the paper was denied a copy of the report following an Oct. 31 Right to Know request. The arbitrator’s report comes more than three years after Goodwin was fired for accepting a $2 million-plus inheritance from the late Geraldine Webber, an elderly Portsmouth resident with dementia. Goodwin was fired in June 2015 and his inheritance was overturned the same year by Judge Gary Cassavechia, who found Goodwin had unduly influenced Webber.

Goodwin has been fighting through the Ranking Officer’s Union for his job back and/or back pay. Union lawyer Peter Perroni argued in court this month that the recent arbitrator's report, about “awards” to Goodwin, is a personnel record and therefore not public under the state’s Right to Know Law.

The Herald’s lawyer, Greg Sullivan, disputes the union’s assertion that the report is exempt from disclosure as a personnel record, noting Goodwin is no longer employed by the city, so there is no internal personnel relationship.

“He was fired long ago,” said Sullivan, who reminded the Right to Know Law is designed “to let the public know what its government is up to.”

Sullivan also told the judge the Herald shouldn't have to pay for him to go to court to fight for the report, just because the city fears being sued by the police union. He asked the judge to order the city to pay for the Herald's legal costs.

Coakley Landfill Group

In response to a lawsuit from a group of public officials, Rockingham County Superior Court Judge N. William Delker ruled in September that the Coakley Landfill Group is a public body and must follow the Right to Know law.

The suit was brought by state Reps. Mindi Messmer, Renny Cushing, Phil Bean, Mike Edgar, Henry Marsh, as well as Portsmouth Police Commissioner Jim Splaine, and the town of Hampton as an intervenor. The CLG is comprised of municipalities and private entities that used the now-closed landfill in Greenland and Rye and are charged with ongoing remediation of the Superfund site.

Portsmouth City Attorney Robert Sullivan said the city, the largest member of the group, decided not to appeal the court decision and has since met in public twice since. Before the court ruling, Sullivan was chairman of the CLG's executive committee. Since the ruling, former Portsmouth Mayor Eric Spear was named chairman.

Sullivan said the group previously held monthly meetings by telephone, but since the Right to Know law requires a physical presence of a majority of its members, it is no longer conducting teleconference meetings. He said before the judge's ruling, no two members of the landfill group could speak by phone, or it would be considered a public meeting. With Spear now serving as chairman, Sullivan said, it is now possible to have "staff-level" phone conversations between members. Sullivan confirmed "staff-level" would include himself.

He said the landfill group will continue to conduct monthly meetings in public, with Spear as chairman.

After the judge's ruling was announced, Cushing said it was affirmation that “Bob Sullivan can’t wear two hats at any given time. He can’t be city attorney and the head of the CLG. It’s an inherent conflict of interest.”

Cushing called it, “a good day for sunshine in the state of New Hampshire.”

Messmer previously said concern grew about how the landfill might impact public health after former Gov. Maggie Hassan formed a task force to study a "Seacoast pediatric cancer cluster."

“What we want is to have protections on our drinking water and stop the flow of toxins from this site,” she said. “The public has so much to lose."

Double-fatal river tragedy

Seven months after Kaillen Wickman, 7, and Laurie Stewart, 56, died as a result of a boating incident in the Piscataqua River, investigators report they have no information about the cause of the double fatality.

In response, Seacoast Media Group filed a Right to Know request with the legal office of New Hampshire's Department of Safety for investigatory reports. By notice dated Dec. 14, Michelle Myrdek, from the DOS office of the commissioner, said she estimates 30 days are needed "to determine the extent of available records responsive to your request."

Shortly after the tragedy, officials said Wickman and Stewart were riding in a Boston Whaler that struck a buoy on the New Hampshire side of the river, leading to their deaths. N.H. Marine Patrol said the driver of the boat was 59-year-old John Wickman, and that Kaillen Wickman’s 5-year-old brother, Michael “Mikey” Brian Wickman, was injured and hospitalized.

State officials said the three passengers were transported to Portsmouth Regional Hospital where Wickman and Stewart were pronounced dead. John Wickman was transported to York Hospital for “a possible back injury and other bruising,” according to the media announcement. Marine Patrol said at the time of the crash that “operator inattention may have been a factor in this crash, however, all aspects remain under investigation.”

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Follow our countdown of the year's top local news at Seacoastonline.com/topstories2018 and Fosters.com/topstories2018.

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